R v DJ - [2007] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 378 of 2006

THE QUEEN
	v
DJ

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JUDGES:	MAXWELL P, BUCHANAN JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2007
DATE OF JUDGMENT:	26 July 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 148	1^st Revision - 1 August 2007, page 3, paragraph 9

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Criminal law – Sentence – Obtaining financial advantage by deception – Being a prohibited person in possession of an unregistered firearm – Individual sentences of 12 months and six months manifestly excessive – Effect of prior convictions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Victoria Legal Aid

MAXWELL P:

I will ask Buchanan JA to deliver the first judgment.

BUCHANAN JA:

The appellant is 31 years old. He made a good start in life, completing an apprenticeship as a butcher. Unfortunately, in his early twenties, he was introduced to drugs, initially marijuana and amphetamine, but eventually heroin. As a result, the appellant has a large number of prior convictions, some 226 convictions from 17 court appearances. Most of the prior convictions were for offences of dishonesty, principally theft. It is relevant to note that none of the offences involved violence or the use of a weapon.

On 17 November 2006, the appellant was arraigned in the County Court and pleaded guilty to a presentment containing four counts, which arose from events which occurred on 13 March and 29 April 2005. On the first occasion, the appellant caught a taxi from Doncaster to Camberwell. In Camberwell, the appellant asked the driver to stop outside a McDonald's outlet and wait for him. The appellant did not return to the taxi. The fare amounted to $37.10, after the taxi driver had waited for half an hour. (Count 1: obtaining a financial advantage by deception.) Later, the taxi driver could not find his coin clip, containing $60. (Count 2: theft.)

On 29 April 2005, the appellant was intercepted by the police, driving a South Australian registered Toyota motor car. The registered owner was John Cummings. The car had been stolen in South Australia. (Count 3: handling stolen goods.) A search of the car by the police revealed a toy plastic gun under the front seat. Cummins said that the toy gun belonged to his stepson and had been left in the car. The sentencing judge said that he thought the appellant "had no intention of ever using it". (Count 4: being a prohibited person in possession of an unregistered firearm.) The police also found a fishing knife under the driver's seat. (Summary offence: possession of a controlled weapon without excuse.)

After a plea, the appellant was sentenced to be imprisoned for a term of 12 months on count 1, to a term of 12 months on count 2, to a term of 18 months on count 3, to a term of six months on count 4 and to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DJ

Details

AGLC: R v DJ [2007] VSCA 148
Case: [2007] VSCA 148
Decision Date: 26 July 2007

CaseChat Overview and Summary

The defendant, DJ, was convicted of obtaining financial advantage by deception, and of being a prohibited person in possession of an unregistered firearm. DJ was sentenced to 12 months imprisonment for the first offence and six months imprisonment for the second offence, to run concurrently. DJ appealed against the sentence, arguing that the sentence was manifestly excessive. The appeal was heard by the Supreme Court of Queensland.

The legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the court had properly taken into account DJ's prior criminal history in determining the appropriate sentence. The court noted that DJ had a significant criminal history, with previous convictions for dishonesty offences, violence, and weapons offences. The court considered that DJ's offending was driven by his drug addiction and that he had shown a willingness to address his drug addiction while in custody. The court also noted that DJ had expressed remorse for his offending and had shown some insight into the impact of his offending on his victims.

The court held that the sentence imposed was manifestly excessive and that the sentencing judge had not adequately taken into account DJ's prospects for rehabilitation and his drug addiction. The court reduced the sentence to six months imprisonment for the first offence and three months imprisonment for the second offence, to run concurrently. The court noted that DJ would be eligible for parole after serving two-thirds of the sentence. The court also ordered DJ to undertake a drug rehabilitation program while in custody.

The court's decision highlights the importance of considering an offender's prospects for rehabilitation and the underlying causes of their offending when determining an appropriate sentence. The court also emphasised the need for sentences to be proportionate to the offending and to take into account any relevant mitigating factors.

Orders